Legal Archives - Stephan Spencer

The DMCA, or Digital Millennium Copyright Act, provides you as a website owner with a useful hammer you can use to beat on copyright infringers.

As a content producer, you have the right to enforce your copyright. When your content gets “re-purposed” on other’s websites without your permission, you can file a DMCA Infringement Notification to the infringer’s web hosting provider and get that infringer’s website shut down (like Ian McAnerin did recently). In DMCA legalspeak, this notification is also known as a “Takedown Notice”. In addition, you can get the naughty infringer de-listed from Google and other engines. (I can hear you saying “Ex-cellent!” in a Mr. Burns voice right now).

It is not a daunting procedure. It might take an hour of your time, and it is well worth it.

Here’s what to do…

First, look up the web host and the domain registrar of the offending site, using lookup tools such as this one from Netcraft and this one from Domain Tools. You can usually ascertain who the web host is from the Name Servers and/or the Netblock Owner.

Then you prepare a letter to send to the designated agent of the web host. The notice you write should include: your contact information, the name of the content that was copied, the web address of the copied content, a statement that you have a good faith belief that the material is not legal, a statement that under penalty of perjury you are the copyright holder, and your signature. Some web hosts will allow you to email your notice to them, making it all that more convenient.

Also be sure to send a similar notification to the seach engines. That will cut off their air supply, in case the site doesn’t get taken down right away. Here are instructions and contact details for each engine: Google, Yahoo! and Windows Live Search (formerly MSN Search). Note that Google requires you to mail or fax your letter, whereas Yahoo and Microsoft (Live Search) both allow you to email your notification.

If the web host doesn’t take the site down promptly, then submit a DMCA notice to the infringer’s domain registrar. Note: It might be worth sending a notice to the data center that the web host uses before you try the registrar, as Dan Richard recommends.

Then there’s the other end of the stick, where someone could use DMCA unfairly against you! It happens. Competitors do use the DMCA to silence competitors. You, as a website owner, need to protect yourself from unwarranted (or at least unwelcome!) prosecution. If the potential exists for you to inadvertently host infringing material on your website(s) — for example if you are hosting online forums, group blogs, blog comments, or other types of content that can be submitted fromÂ others besides yourself — then here are some actions you can take to help protect yourself…

If so, notify your customers of your policies regarding copyright infringement and the consequences of repeated infringing activity. One way of achieving this is by making it part of your Terms of Use.

Also, publish a page on your website with DMCA filing instructions and state that, if and when you get a DMCA notification,Â you will act on it. Here’s an example of such a DMCA Notification Instructions page.

They say that “Imitation is the sincerest form of flattery.” But not if you’re a site owner! I’ve seen designs copied, content copied, even entire sites copied. It’s so easy for someone to “view source” and take whatever they like, without regard to copyright.

You can locate copyright infringers pretty easily with Copyscape if they’ve lifted some of your page copy. It’s much more difficult if they’ve limited their sticky fingers to just your design.

So far I’ve discovered by tip-off or by chance that our Netconcepts.com site design has been “pinched” at least 3 times. One of them was a fairly big company. More than a year and they finally stopped using our design, but the evidence of their misbehavior is permanently archived in the Wayback Machine (hint: pick a date in 2004 and compare with my company’s site). In fact, the Wayback Machine is quite useful in that it can serve as indisputable proof of who is the source and who is the copy: whichever site shows the design in use before the other is the source.

The way I see it, you have five options for dealing with an infringer:

I have to admit that we’ve often done nothing, just because we’re so busy. Eventually they’ll redesign (maybe pinching another design from somewhere else?). Of course that’s not a great option if you’re serious about protecting your IP (intellectual property) rights.

With our most recent infringer, we’ve taken a more active role. We spoke to their CEO. He asked for 2 months to redesign, which we’ve granted them.

So, what would you do? What’s the most legally correct response? The most pragmatic response?

We’ve all seen websites that say “(c) 2004, All Rights Reserved” at the bottom. Now you’ll hopefully start seeing the (cc) symbol, which stands for Creative Commons, and means that only SOME rights are reserved.

Creative Commons is a legal concept championed by the intellectual powerhouse amongst copyright lawyers Larry Lessig. Copyright law is decades behind the times and doesn’t adequately address electronic media. Enter Creative Commons, a less restrictive copyright. It’s a significant advance for content authors who want to stimulate a collaborative community-led effort spurred by the content they have created, and one for those who wish to create derivative works or pick up where others have left off. If, for example, you wanted to make a derivative work of the Google Guide for non-profit purposes tailored to an audience of school librarians, you could do so under their Creative Commons license.